Jabeen Ihsan vs Noushima Basheer
2021 Latest Caselaw 13689 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
       THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                              &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
    FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
                  OP (FC) NO. 169 OF 2021
  AGAINST THE ORDER IN IA 1297/2020 AND IA NO.1/2021 IN OP
           1327/2018 OF FAMILY COURT,KOZHIKODE,
PETITIONER/PETITIONER:

         JABEEN IHSAN
         AGED 28 YEARS
         S/O. MUHAMMED ABDURAHIMAN, POLAYIL HOUSE,
         PARAMMAL, MAVOOR POST, KOZHIKODE 673 661
         REPRESENTED BY ITS POWER OF ATTORNEY HOLDER
         MUHAMMED ABDURAHIMAN, AGED 59 , S/O. HAMZA,
         KONNARE HOUSE, PARAMMAL, MAVOOR POST, KOZHIKODE
         673 661
         BY ADVS.
         K.M.FIROZ
         M.SHAJNA
         E.C.AHAMED FAZIL
         P.C.MUHAMMED NOUSHIQ
RESPONDENT/RESPONDENT:

         NOUSHIMA BASHEER
         AGED 25 YEARS
         D/O. BASHEER, KAVIL VEEDU,
         WEST KODIYATHUR, KOZHIKODE 673 602
         BY ADVS.
         SRI.E.A.HARIS
         SRI.M.A.AHAMMAD SAHEER

     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
29.06.2021, THE COURT ON 02.07.2021 DELIVERED THE FOLLOWING:
 OP(FC) No.169/2021

                                  -:2:-




                           J U D G M E N T

Dated this the 2nd day of July, 2021

Dr.Kauser Edappagath, J.

The petitioner herein challenges Exts.P4 and P6 orders

passed by the Family Court, Kozhikode ("the court below" for

short) in an original petition filed by him for restitution of conjugal

rights as OP No.1327/2018.

2. The petitioner is the husband of the respondent. The

following three matrimonial proceedings are pending between

them before the court below:

(i) OP No.1327/2018 filed by the petitioner for restitution of conjugal rights.

(ii) OP No.1166/2018 filed by the respondent for dissolution of marriage.

(iii) OP No.1340/2018 filed by the respondent for recovery of gold ornaments and money.

3. All the above three petitions were tried jointly. The

respondent gave evidence as PW1. According to the petitioner,

she deposed during evidence that the marriage was solemnized

without her consent, will and wish, that she was not interested in OP(FC) No.169/2021

continuing with the marital relationship and that the marriage

was not consummated. Thereafter, the petitioner filed Ext.P3

application before the court below seeking permission to

withdraw OP No. 1327/2018 and to file a fresh OP for nullity of

marriage on the ground that the marriage was held without the

consent of the respondent. The court below after hearing both

sides dismissed the said application as per Ext.P4 order.

Aggrieved by Ext.P4 order, the petitioner preferred Ext.P5

application to review Ext.P4 order. It was also dismissed as per

Ext.P6 order. Exts.P4 and P6 orders are under challenge in this

original petition.

4. Heard the learned counsel for the petitioner and the

learned counsel for the respondent.

5. As per Order XXIII Rule 1(3) of Civil Procedure Code

(for short "the Code"), the plaintiff can seek permission to

withdraw from the suit with liberty to file fresh suit in respect of

the same subject matter of the suit, on any of the two grounds:

(1) the suit would fail by reason of some formal defect (2) there

are sufficient ground for allowing the plaintiff to institute a fresh

suit in respect of the same subject matter. The court can allow OP(FC) No.169/2021

the application under Order XXIII Rule 1(3) only on satisfaction of

either of these conditions. The word "formal defect" appearing in

Rule 1 sub-clause (3) of Order XXIII of the Code means the defect

which does not affect the merits of the case whether that defect

is fatal to the suit or not. There is no case for the petitioner that

there is any such formal defect. The learned counsel for the

petitioner submitted that there are sufficient grounds for

allowing the petitioner to institute a fresh suit for the subject

matter of the suit and hence the court below ought to have

allowed Ext.P3 application. In support of his argument, the

learned counsel has relied on a latest judgment of this court in

Sabu Issac v. Antony Chacko (2020 KHC 682). It was held

therein that the expression "sufficient grounds" occurring in

clause (b) of Rule 1(3) of Order XXIII of the Code is not to be read

ejusdem generis with the expression "formal defect" occurring in

clause (a). It was further observed that there is no requirement

that "sufficient ground" pleaded by the plaintiff for seeking

permission to withdraw the suit with liberty to institute fresh suit

shall be analogous to a formal defect.

6. It is settled that the subject matter of the suit which is OP(FC) No.169/2021

sought to be instituted afresh shall be the same as that of the

suit which is sought to be withdrawn. The subject matter

mentioned in clause (3) of Rule (1) includes the cause of action

as well. Thus, no permission can be granted if the suit sought to

be instituted is in respect of different subject matter. Sub-rule (3)

is not intended to permit a plaintiff to withdraw one suit and to

institute any suit as he likes. The Supreme Court in

K.S.Bhoopathy and Others v. Kokila and Others (AIR 2000

SC 2132) has held that fresh suit should be in respect of the

same claim or part of a claim of the same subject matter. The

Original Petition instituted by the petitioner was one for

restitution of conjugal rights. Now, after withdrawing the said

petition, the petitioner wants to institute an original petition with

a prayer for nullity of marriage. Both the claims are totally

opposite and the subject matter also is not the same. That apart,

the petitioner had no case that the marriage was null and void in

the counter filed to OP No.1166/2018, the divorce petition filed by

the respondent. The petitioner never had a case that the

respondent did not give consent for the marriage and hence the

marriage was null and void. The court below on perusing the OP(FC) No.169/2021

evidence adduced by PW1 found that she did not depose that her

consent was not obtained for the marriage. We see no

jurisdictional error committed by the court below in passing the

impugned orders so as to invoke the jurisdiction vested with this

court under Art.227 of the Constitution of India.

Original Petition stands dismissed accordingly.

Sd/-

A.MUHAMED MUSTAQUE JUDGE

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp OP(FC) No.169/2021

APPENDIX OF OP (FC) 169/2021

PETITIONER'S ANNEXURES

EXHIBIT P1 TRUE COPY OF O P NO 1327 OF 2018 ON THE FILES COURT, KOZHIKODE

EXHIBIT P2 TRUE COPY OF DEPOSITION OF PW1 (NOUSHIMA BASHEER) IN O.P NO. 1327 OF 2018 ON THE FILES OF FAMILY COURT, KOZHIKODE AND CONNECTED CASES

EXHIBIT P3 TRUE COPY OF I.A NO. 1297 OF 2020 IN O.P NO. 1327 OF 2018 ON THE FILES OF FAMILY COURT, KOZHIKODE

EXHIBIT P3 A TRUE COPY OF OBJECTION IN I.A NO. 1297 OF 2020 IN O.P NO. 1327 OF 2018 FILED BY THE RESPONDENT HEREIN ON THE FILES OF FAMILY COURT, KOZHIKODE

EXHIBIT P4 TRUE COPY OF ORDER DATED 11-01-2021 IN I.A NO. 1297 OF 2020 IN O.P NO. 1327 OF 2018 PASSED BY FAMILY COURT, KOZHIKODE

EXHIBIT P5 TRUE COPY OF I.A NO. 1 OF 2021 IN I.A NO. 1297 OF 2020 IN O.P NO. 1327 OF 2018 ON THE FILES OF FAMILY COURT, KOZHIKODE

EXHIBIT P5 A TRUE COPY OF OBJECTION IN I.A NO. 1 OF 2021 IN I.A NO. 1297 OF 2020 IN O.P NO.

1327 OF 2018 ON THE FILES OF FAMILY COURT, KOZHIKODE FILED BY THE RESPONDENT HEREIN

EXHIBIT P6 TRUE COPY OF ORDER DATED 12-02-2021 IN I.A NO. 1 OF 2021 IN I.A NO. 1297 OF 2020 IN O.P NO. 1327 OF 2018 PASSED BY FAMILY COURT, KOZHIKODE.